Justifying Unconditional Victory: The International Military Tribunal for the Far East

By Lawrence I. Charters

Presented at Asian Studies on the Pacific Coast, hosted by The Evergreen State College, June 16, 1979.

On the morning of September 2, 1945, Shigemitsu Mamoru and General Umezu Yoshijiro boarded the battleship Missouri, riding at anchor in Tokyo Bay. As representatives of the Imperial Japanese Government, they then signed a document unconditionally surrendering the Japanese armed forces to the Allies, thus terminating World War II. The Instrument of Surrender further authorized the Supreme Commander for the Allied Powers [SCAP] to exercise almost unlimited authority over the Japanese government, its citizens, and territory. Somewhat ironically, this authorization would soon be used to convict twenty-five Japanese leaders of having started the war, and among those convicted would be Shigemitsu and Umezu.1

The question of who started the war was an important issue to the Allies, though they believed that there could be no doubt of the answer to that question. The war in Asia, from the Allied point of view, was entirely of Japan’s instigation, just as Germany was solely accountable for the war in Europe. With the issue so clear-cut, there only remained the matter of punishing those Japanese and German citizens responsible for the war, and for all of its suffering, destruction, and death. To punish the guilty Germans, the Allies established the International Military Tribunal at Nuremberg. Culpable Japanese were tried by the organization which is the topic of the present study: the International Military Tribunal for the Far East [IMTFE].

Held, somewhat ironically, in an auditorium of the War Ministry Building in Tokyo, the Tribunal examined and passed judgment upon a huge spectrum of Japanese political and military activity covering the period from January 1, 1928, to September 2, 1945. Opening its doors for the first time on April 29, 1946, the Tribunal did not close until November 12, 1948 — two and a half years later. In 818 court sessions a total of 419 witnesses were called to testify, and 779 more witnesses testified through depositions and affidavits. A total of 3,915 exhibits (roughly 30,000 pages) were accepted into evidence. The trial transcript came to 48,412 pages, the majority judgment added 1,444 more pages, and the two concurring and three dissenting opinions totaled 2,200 pages. In contrast to the much shorter Nuremberg tribunal, almost nothing from the Tokyo trial was reprinted for distribution by any of the prosecuting powers. In spite or this, the English-language record or the trial is generally considered to be the largest single body of Western-language material on Japanese prewar history.2

Unlike the war crimes trials at Nuremberg, the Tribunal in Tokyo had no direct connection with the United Nations. Instead, the IMTFE resulted from a series of declarations limited to just a small number of nations at war with Japan, the first such being the Cairo Declaration of December 1, 1943. The vague reference contained therein to “restrain and punish the aggression or Japan” was followed by similar sentiments in the Potsdam Declaration, though the Cairo Declaration suggests that the actions contemplated by the Allies were more territorial and military than criminal. General MacArthur, in his role as Supreme Commander, created the Tribunal through military decree, issuing the IMTFE Charter on January 19, 1946. As amended April 26, 1946, the Charter called for a maximum of eleven judges on the IMTFE bench, one each from Australia, Canada, China, France, India, Great Britain, the Netherlands, New Zealand, the Philippines, the Soviet Union, and the United States. Each of these nations was also represented by one or more prosecutors.3

Thus, the IMTFE was an international judicial body — created through military proclamation — composed exclusively, in terms of prosecutors and justices, of citizens of nations recently at war with Japan. The defendants –­ all Japanese — were accused of having committed various crimes against the very nations serving as both prosecutors and judges. To make matters even more interesting, the official languages of the trial were English and Japanese, with none of the judges or prosecutors fluent in Japanese and only a few of the defendants conversant in English. The Russian justice, Major General of Justice I. M. Zaryanov, was fluent in neither language;­ everything had to be translated into Russian by a staff provided by the Soviet Um on.4 It has also been suggested that the French justice, Henri Bernard, had only a minimal understanding of English.5

It would seem that the objectivity of the Tribunal left something to be desired, and if the individual backgrounds of the jurists are examined this becomes even more apparent. The Chinese justice, Mei Ju-ao, was a diplomat, and had never acted as a judge prior to his appointment to the Tribunal. It is speculated that he eamed his appointment through his friendship with SUn Yat-sen’s son.6 Delfin Jaranilla, the Philippine justice, was a survivor of the Bataan death march, and spent the war as a prisoner of the Japanese.7 Major General Myron H. Cramer, the American justice tor the majority of the trial, was not even on the Tribunal when it was originally­ composed. He replaced. John P. Higgins, Chief Justice of the Superior Court of Massachusetts, who had resigned from the Tribunal. In addition to the rather dubious circumstances of his appointment, General Cramer, in his capacity as Judge Advocate General of the U.S. Army, had conducted a study for President Roosevelt on the legal responsibility for the Pearl Harbor attack. Any opinions Cramer might have had on the causes of World War II were probably formed long before he was appointed to the Tribunal.8

Most curious of all are the qualifications, or disqualifications, of the President of the Tribunal, Sir William Flood Webb of Australia. Webb, Chief Justice of the Supreme Court of Queensland, was appointed, in 1943, Japanese Atrocities Commissioner, charged with the investigation of Japanese war crimes. During 1944-45 he was appointed a War Crimes Commissioner and traveled to England, where he testified before the United Nations War Crimes Commission on Japanese breaches of the laws or war.9 Webb’s experience, it would seem, would easily qualify him for the role of prosecutor, but Webb held the post of President, or chief justice, of the IMTFE.

In fact, of the eleven justices on the IMTFE bench, only one had any background or experience in international law: Justice Radhabinod Pal, Chief Justice of the High Court of Calcutta and a member of the International Law Association. With the other judges he shared the common trait of being a citizen of the prosecuting nations, but otherwise it could easily be argued that he, and probably he alone, was qualified to sit on the Tribunal bench. Significantly, Justice Pal acquitted all defendants on all counts.10

Having examined the justices, it is now time to look at the IMTFE defendants. Each of the eleven prosecuting nations was allowed to select two defendants for trial, and the prosecution staff selected a few more, bringing the total to twenty-nine. One of the proposed defendants, Prince Konoe Fumimaro, committed suicide at the time of his arrest, leaving twenty-eight.11 Those twenty-eight accused were:

General Baron Araki Sadao

General Doihara Kenji

Colonel Hashimoto Kingoro

Field Marshal Hata Shunroku

Baron Hiranuma Kiichiro

Hirota Koki

Hoshino Naoki

General Itagaki Seishiro

Kaya Okinori

Marquis Kido Koichi

General Kimura Heitaro

General Koiso Kuniaki

General Matsui Iwane

Matsuoka Yosuke

General Minami Jiro

Lt. General Muto Akira

Fleet Admiral Nagano Osami

Vice Admiral Oka Takasumi

Okawa Shumei

Lt. General Oshima Hiroshi

Lt. General Sato Kenryo

Shigemitsu Mamoru

Admiral Shimada Shigetaro

Shiratori Toshio

Lt. General Suzuki Teiichi

Togo Shigenori

General Tojo Hideki

General Umezu Yoshijiro

Most of the defendants had been imprisoned since the start of the Occupation in September 1945, but none were in any way charged with any crimes until April 29, 1946, when an indictment was lodged before the IMTFE. The indictment contained fifty-five counts, divided into three groups: Group I (counts 1-36) alleged conspiracy to wage aggressive war and crimes against peace; Group II (counts 37-52) alleged murder and conspiracy to commit murder; and Group III (counts 53-55) alleged conventional war crimes and crimes against humanity. Theoretically, if every defendant had been charged with all counts the Tribunal would have had to deal with a total of 1,540 charges; as it was, 1,148 charges were presented, at an average of 41 counts per defendant.

Count 1 of the indictment set the theme for the entire trial when it charged “all Defendants together with divers other persons, between the 1st January 1928, and the 2nd September 1945, participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy,” the object of which “was that Japan should secure the military, naval, political, and economic domination of East Asia and of the Pacific and Indian Oceans, and of all countries and islands therein and bordering thereon…”12 In other words, the accused were charged with plotting, over an eighteen year period, to take over more than half of the world, including China, Australia, India, the Soviet Union, and the United States.

Lest someone miss the point, this basic premise was detailed in thirty-five other conspiracy counts in the indictment. Some or all of the defendants were charged with one conspiracy against the whole world, one conspiracy directed against all nations bordering on the Pacific or Indian Oceans, seven conspiracies against China, three against the United States, seven against the British Commonwealth or its member states, three against the Philippines, two against the Netherlands, three against France, three against Thailand, and five against the Soviet Union or Mongolia. Sixteen conspiracies to commit murder were also charged, based on the notion that the deaths of Allied soldiers or citizens in the war with Japan were unlawful since Japan had unlawfully initiated the war. Three counts of the indictment covered conventional war crimes and crimes against humanity.13

Any plot against the entire world should reasonably involve conspirators of a rather high caliber, and the twenty-eight defendants were, with a number or exceptions, such men. Counting multiple appointments and concurrent posts, the defendants held the following high offices:

Palace

Military

Chief, Army General Staff: Tojo, Umezu

Chief, Naval General Staff: Nagano, Shimada

Inspector General of Military Education: Doihara, Hata (two times)

Total military posts: 7

Nine of the defendants had never held a top government, palace, or military post. Okawa, a noted propagandist and sometimes terrorist, had no government role or any sort, and spent several of the years covered by the indictment in prison for his role in the assassination of Prime Minister Inukai Ki. Hashimoto reached the pinnacle of his career when he directed the attacks on the gunboats HMS Ladybird and USS Papay in the Yangtze River in 1937. While this action was definitely not a friendly one, it somehow falls short of playing a major part in the conquest of the world. The remaining defendants –Kimura, Matsui, Muto, Oka, Oshima, Sato, and Shiratori — had led reasonably distinguished careers in the military or foreign service, but none held a position involving the formulation of national policy — or world conquest.

While the trial itself was quite fascinating and worthy of a great deal of close attention, the present study is best served by skipping over the great bulk of the proceedings and coming directly to the judgment. Between November 4, 1948, and November 12, 1948, the majority opinion was read in open court. By this time the twenty-eight defendants had been reduced to twenty-five: Matsuoka and Nagano had died during the trial, and Okawa had been declared insane and therefore unfit to stand trial. All of the remaining defendants were convicted — of something or other.

The majority opinion struck down forty-five of the fifty-five counts of the indictment, stating that these counts were redundant. In addition, Count 1, which charged an overall conspiracy, was interpreted by the Tribunal in a slightly edited fashion. While the original count charged that the defendants conspired to achieve Japan’s “domination of East Asia and of the Pacific and Indian Oceans, and of all countries and islands therein and bordering thereon,” the majority opinion stated that “we do not think the conspirators ever seriously resolved to attempt to secure the domination of North and South America.”14 Exactly how the majority viewed the possibility of domination of the Soviet Union, Australia, or India was unclear. Other than this qualification, the majority felt that the overall conspiracy had been proved, and upheld the count. The other nine counts which were upheld were:

Count 27: waging war against China

Count 29: waging war against the United States

Count 31: waging war against the British Commonwealth

Count 32: waging war against the Netherlands

Count 33: waging war against France

Counts 35 and 36: waging war against the Soviet Union

Count 54: ordering, authorizing, or permitting atrocities

Count 55: reckless disregard of duty to secure observance and prevent breaches of the laws of war

It was upon these counts that the majority based its judgment.15

The verdicts and sentences:16

Araki: charged on forty-one counts (reduced to ten), found guilty on two counts (1, 27); life imprisonment.

Doihara: charged on forty-nine counts (reduced to ten), found guilty on eight counts (all but 33 and 55); hanged.

Hashimoto: charged on thirty-three counts (reduced to seven), found guilty on two counts (1, 27); life imprisonment.

Tojo: charged on fifty counts (reduced to nine), found guilty on seven counts (all but 35, 36, and 55); hanged.

Umezu: charged on thirty-nine counts (reduced to eight), found guilty on five counts (1, 27, 29, 31, 32); life imprisonment.

Two concurring and three dissenting opinions were also written, but the majority would not allow any of them to be read in open court. In four cases, defendants were spared the death penalty by just one vote. At least one defendant, Hirota, was doomed as a result of a six to five majority in favor of execution.17

The executions ordered by the Tribunal were carried out, after a review by General MacArthur, on December 23, 1948. Shigemitsu received a special parole from MacArthur in 1950, and was released. By 1958, just ten of the defendants were still alive (Araki,Hata, Hoshino, Kaya, Kido, Oka, Oshima, Sato, Shimada, and Suzuki) and all were unconditionally released on April 7.18

Looking back over the Tribunal record, its composition, proceedings, conclusions, and sentences, it is tempting to label the entire affair as an example of victor’s justice. Yet it would be an error to dismiss the trial as nothing more than an instance of imposed will. Article 11 of the Treaty of San Francisco [Japan Peace Treaty, Septembers, 1951] specifically upheld the judgment of the Tribunal and of all Tribunal sentences.19 Accordingly, even it the trial was unfair, biased, or inaccurate, it now forms part of the foundation upon which Japan’s sovereignty is based, and cannot be easily ignored.

Though the IMTFE was a legal undertaking, its historical significance is just as great, if not greater. The most important aspect in this regard is the support the Tribunal gave to Count 1 of the indictment: conspiracy to dominate East Asia, the Pacific, and the Indian Oceans. All but two of the defendants were convicted on this count, affirming that there was such a conspiracy..

But was there? The answer is not to be found in the proceedings of the Tribunal so much as in certain established historical facts. Seen from the Japanese point of view, Japan’s prewar policy was one of securing a firm sphere of influence in East Asia, similar to that held by the United States in the Western Hemisphere and several European powers in Africa and South Asia. Being somewhat late in the game of imperialism and the acquisition of colonies, Japan ran into conflict with the major Western powers and their holdings in China and Southeast Asia. Also complicating matters was the continuing Chinese Revolution, started in 1911 and destined to linger on until 1949. Most annoying and difficult of all was the problem of changing morality: the Western nations, having absorbed most of the available real estate in the world, had decided that imperialism was immoral, and strongly insisted that Japan refrain from employing any of the methods the West had used to acquire its territories.

Japan entered Manchuria with the intention of establishing an economic structure similar to that supporting the Western powers. Gradually, the Manchurian Incident evolved into the North China Incident, and then into the China Incident. After the Western nations cut Japan’s oil supply in 1941, Japan launched a preemptive strike against the Allies, and simultaneously sought to restore the flow of oil. The China Incident had evolved into the Greater East Asia War, but the object was the same: the establishment of an independent economic base in Asia.

To the West, though, it seemed that an entirely different kind of war was being fought. The Pacific Ocean, not China, was the object of the struggle, and the Allies concentrated their efforts on the fight to win it back from Japan.

Towards the end of the war, a strange transformation took place. Japan, beaten on the seas and in the air, and stalemated in the war in Asia, gave up the fight for economic independence and instead fought to maintain the imperial dynasty, the spiritual and cultural focus of the nation. The Allies, having eliminated the Japanese as a threat in the Pacific, had all but won the war, but went beyond this initial goal and tough for Japan’s complete capitulation. The Manchurian Incident had become the battle for Japan’s national heritage and identity, or, from the Allied point of view, the Pacific War had become a war to achieve uncompromised, unconditional victory.

In essence, Japan and the Allies were fighting two entirely different kinds of wars, with entirely different aims. As the Allies won, it was the Allied view which prevailed. So strong was the Allied view, in fact, that General MacArthur, on December 15, 1945, issued an order prohibiting the Japanese government from using the term “Greater East Asia War” (Dai Toa Senso). The Allies had fought, and won, a Pacific War, and were insisting that the vanquished recognize this fact.20 The IMTFE was, in its own way, merely another method of driving home this same point.

As almost all scholarly research on Japan’s prewar foreign policy, as well as some aspects of domestic political activity, has been based in whole or in part upon the record of the IMTFE, it is important to recognize the limitations of the IMTFE record. Can any trial that has as its sole aim the investigation and prosecution of one party in a dispute — and only that one party — be considered a source of objective factual material, especially when the judge, jury, and prosecution all claim to be the victim? When the very biased nature of the IMTFE is noted, it is no wonder that most research on prewar Japan — everything from Yale Maxon’s Control ot Japanese Foreign Policy21 to Mark Peattie’s Ishiwara Kanji and Japan’s Confrontation with the West22 — asks not “who started the war?” but “why did Japan start the war?”

Rather than offer a closing summation, this study will examine the IMTFE and how it applies to the “Bergamini thesis.” As an example of how biased material can be misused, David Bergamini’s work, Japan’s Imperial Conspiracy, is a one volume education. The introduction was written by Sir William Flood Webb, the President of the IMTFE. Bergamini, a captive of the Japanese during the Second World War, claims that his work is based upon the IMTFE proceedings, the diary of Marquis Kido, and hundreds of sources both obscure and, quite often, confidential or secret.23

Stated baldly, Bergamini contends that the Emperors of Japan, since the time of Emperor Komei, have directed a massive conspiracy aimed at throwing the Westem powers out or Asia in general and Japan in particular. As Bergamini puts it, “Emperor Komei had died for the cause of expelling the barbarians. Emperor Hirohito would live for it. It was a holy mission bequeathed by the imperial ancestors.”24

Bergamini claims, for example, that Hirohito is actually a year older than is commonly thought. This deception had been fostered, he says, to cover up the fact that the Emperor was actually born out of wedlock.25 Hirohito himself, states Bergamini, is actually the father of a male child conceived through artificial insemination.26 The Emperor’s noted fascination with biology is actually a facade, since Hirohito is interested more in biological warfare than in biology itself.27 The concept of suicide planes as a weapon to be used against the Allies was also, Bergamini holds, Hirohito’s own.28 And even today, more than a quarter of a century after SCAP eliminated all but a handful of the Imperial family holdings, Hirohito’s personal wealth, so theorizes Bergamini, runs to well over one billion dollars.29

Exactly how Bergamini’s work should be characterized is a mystery. Numerous scholars have examined his work, and found it wanting in style, technique, documentation, and even basic honesty.30 Yet the work is still in print, and sells well in its paperback format. Mr. Bergamini, not one to let the matter die with this one book, wrote a science fiction novel a few years later in which he repeated some of the same charges.31 The novel itself, though, is on another subject entirely: good guys, determined to defeat a conspiracy on the part of the very rich — the bad guys — to subdue humanity, themselves set up a conspiracy to steal the planet Venus and turn it into a new Eden.

One of the more unusual uses of Bergamini’s findings can be found in A. J. Barker’s Yamashita.32 Barker, a noted military historian, appears to have taken most of his text — verbatim, or nearly verbatim — from Bergamini’s Japan’s Imperial Conspiracy. Why Barker would care to plagiarize Bergamini is not clear, and neither Barker nor Bergamini have troubled themselves to answer any questions on the subject. Stylistically, Barker has improved somewhat on Bergamini’s original text, though this can hardly explain his poor taste in source material. There are far finer works on Yamashita from which to steal, and Barker really should have spent some time to search them out.33

Bad scholarship, or pseudo-scholarship, is not the fault of the IMTFE. Yet the Tribunal itself is something less than an ideal source for material on prewar Japan. Though promoted as an objective judicial panel dedicated to finding the truth and punishing the guilty, it is hard to imagine a panel that could be more strongly biased, or more strongly devoted to vengeance. Whether intended or not, the International Military Tribunal for the Far East was an instrument for justifying the unconditional Allied victory, a platform for explaining Allied methods and tactics through the indirect means of detailing Japanese evil. Such is not the stuff upon which good history is based.

Notes

1 Copies of the Instrument or Surrender and of the Potsdam Proclamation which was incorporated in the surrender may be found in U.S.State Department, A Decade of American Foreign Policy: Basic Documents, 1941-49, S. Doc. 123, 81st Cong., 1st sess., 1950, pp. 625-26 and 49-50, respectively.

2 There were originally 250 English and 250 Japanese sets of mimeo­graphed Tribunal materials. The only portions of this material that have been published are the Indictment, the Tribunal Charter, and portions of the chief prosecutor’s opening statement. U.S. Department of State, Trial of Japanese War Criminals (Washington, D.C.: Government Printing Office, 1946).

4 Solis Horwitz, “The Tokyo Trial,” International Conciliation 465 (November 1950): 488 n. 25. Such translators were probably unsworn and of unknown reliability. Mr. Horwitz, incidentally, was a member or the prosecution staff of the IMTFE.

5 George F. Blewett, “Victor’s Injustice: The Tokyo War Crimes Trial,” American Perspective 4 (Summer 1950}: 282; Gordon Ireland, “Uncommon Law in Martial Tokyo,” The Yearbook of World Affairs, 1950, p. 59. Mr. Blewett was a member of the IMTFE defense team.

10 Pal’s 1,235 page dissent not only acquits all defendants but attacks the Tribunal members, individually and collectively, and suggests in places that the Allies were to blame for the war in Asia. Radhabinod B. Pal, Judgement of the Hon’ble Mr. Justice Pal. Member from India (Tokyo: International Military Tribunal for the Far East, 1948).

33 Compare Bergamini’s passage, “Confident that they would not be molested…” on pp. 642-43 with Barker’s passage, “Confident that they would not be molested…” on p. 33. Also, Bergamini’s section beginning, “That evening, after numerous telephone calls…” on p. 872 with Barker’s, “That evening, after numerous telephone calls…” on p. 67. Also, Bergamini’s “For over a month Filipino survivors…” on p. 1049 to Barker’s “For over a month Filipino survivors…” on p. 151. In all, several thousands of Bergamini’s words have found their way, without explanation, into Barker’s volume.

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